What Is TCPA Compliance?

Outbound telemarketing calls to third-party generated leads are subject to the Telephone Consumer Protection Act (TCPA.) The TCPA currently prohibits using an auto-dialer or artificial or prerecorded voice to place calls to a cell phone unless the caller has obtained the prior express consent of the called party. Telemarketers are required to have prior express written consent to do the same thing.

Telemarketers will also need this form of written consent for all prerecorded telemarketing calls placed to landlines. As a practical matter, this means that a purchaser of leads will face a higher standard to prove that the consumer did, in fact, consent to be called.

The FCC defines “prior express written consent” as:

An agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver advertisements or telemarketing messages using an auto-dialer and the telephone number to which such advertisements or telemarketing messages may be delivered.

(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:

(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and

(B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services. The FCC defines “clear and conspicuous” as follows: “A notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.”
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Note that the “signature” requirement can be met by getting the consumer’s signature in electronic or digital form, including on a website. Also, note that the restriction applies to any system capable of operating as an automated telephone dialing system, including predictive and progressive dialers.

There are likely many different
ways to comply
with the 2013 rule, but each variation will require some explicit language placed where it will be readily apparent to the consumer (i.e., directly on a registration or sign-up page), and is not buried among other disclosures or difficult to identify among the rest of the copy on the screen.

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The “clear and conspicuous” disclosure requirement dovetails with the Federal Trade Commission’s (“FTC”) new guidance document for digital advertisers and marketers, called the “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the “Disclosure Guide”). The Disclosure Guide can help lead generators make consent disclosures clear and conspicuous in order to avoid claims of false and deceptive marketing practices.